Sherwood v. Moelle

• Decision Date: 29 October 1888
• Citation: 36 F. 478
• Parties: SHERWOOD v. MOELLE
• Court: U.S. District Court — District of Nebraska

36 F. 478

SHERWOOD v. MOELLE

United States Circuit Court, D. Nebraska.

October 29, 1888

Montgomery & Jeffrey, for plaintiff.

Harwood Ames & Kelly, for defendant.

Before BREWER, Circuit Judge, and DUNDY, District Judge.

BREWER J.

This case is now submitted on petition for rehearing. When first submitted it was decided upon the proposition that one who takes title by a mere quitclaim deed cannot be considered a bona fide purchaser, and a decree was ordered accordingly in favor of the defendant and cross-complainant. In this petition for rehearing that proposition is challenged, as well as its application to the facts in this case. Of the soundness of the proposition as a general one I have no doubt, although it may be possibly subject to some limitations. It has been recognized by many courts, and frequently affirmed by the supreme court of the United States. In the recent cast of Johnson v Williams, 37 Kan. 179, 14 P. 537, Mr. Justice VALENTINE who is one of the most painstaking and thoughtful judges I know, has collated the various authorities, and in the following guarded language states the conclusions of himself and the other members of that court, as well as the principal reasons in support of the proposition:

'We would think that in all cases, however, where a purchaser takes a quitclaim deed, he must be presumed to take it with notice of all outstanding equities and interests of which he could, by the exercise of any reasonable diligence, obtain notice from an examination of all the records affecting the title to the property, and from all inquiries which he might make of persons in the possession of the property, or of persons paying taxes thereon, or of any person who might, from any record or from any knowledge which the purchaser might have, seemingly have some interest in the property. In nearly all cases between individuals, where land is sold or conveyed, and where there is no doubt about the title, a general warranty deed is given; and it is only in cases where there is a doubt concerning the title that only a quitclaim deed is given or received. Hence, when a party takes a quit-claim deed, he knows he is taking a doubtful title, and is put upon inquiry as to the title. The very form of the deed indicates to him that the grantor has doubts concerning the title; and the deed itself is notice to him that he is getting only a doubtful title. Also as a quitclaim deed can never of itself subject the maker thereof to any liability, such deeds may be executed recklessly, and by persons who have no real calim, and scarcely a shadow of claim to the lands for which the deeds are given; and the deeds may be executed for a merely nominal consideration, and merely to enable speculators in doubtful titles to harass and annoy the real owners of the land; and speculators in doubtful titles are always ready to pay some trifling or nominal consideration to obtain a quitclaim deed.'

I do not care, however, to enter into a discussion of that general proposition, or consider...